Ross v. Canada (Indian and Northern Affairs), 2007 FC 499

 

 

 

 

Date: 20070511

Docket: T-2049-06

Citation: 2007 FC 499

Ottawa, Ontario, May 11, 2007

 

PRESENT:     The Honourable Mr. Justice Blais

 

 

BETWEEN:

 

PETER ROSS, EARL ROSS and ALBERT ROSS

Applicants

and

 

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

(INDIAN AND NORTHERN AFFAIRS),

THE ATTORNEY GENERAL FOR CANADA

Respondents

 

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review in respect of a Ministerial Declaration by the Minister of Indian and Northern Affairs (the Minister), dated October 19, 2006 (the Declaration), and of the subsequent Order in Council C.P. 2006-1112, dated October 19, 2006 (the Order in Council).

 

BACKGROUND

[2]               In accordance with the Indian Act, R.S.C. 1985, c I-5 (the Act), a Band Council election for one chief and six councillors of the Lake St. Martin First Nation was held on June 13, 2005.

 

[3]               The applicant Peter Ross was elected into the position of Chief, while the applicants Earl Ross and Albert Ross were each elected councillors of Lake St. Martin First Nation, for a two year term expiring June 13, 2007.

 

[4]               On or about July 20, 2005, an appeal of the election was initiated pursuant to section 12 of the Indian Band Elections Regulations, C.R.C., c. 952 (the Regulations). The election appeal was supported by the original letter of appeal dated July 20, 2005, from Anthony Marsden, and nine affidavits from other registered Band members of the Lake St. Martin First Nation (the supporting documentation), where it was alleged that the applicants engaged in vote-buying during the election process.

 

[5]               In accordance with subsection 12(2) of the Regulations, by letter sent on or about August 11, 2005, the Department of Indian and Northern Affairs Canada (INAC) notified the applicants of the election appeal and provided the applicants with the supporting documentation.

 

[6]               As contemplated by subsection 12(3) of the Regulations, the applicants responded to the appeal and provided INAC with a letter by Peter Ross, and affidavits by Earl Ross and Albert Ross, all denying the accusations, as well as two affidavits from Band members recanting information provided in their initial affidavits submitted in support of the election appeal.

 

[7]               INAC officials, on behalf of the Minister, directed an investigation, pursuant to section 13 of the Regulations, and appointed an investigator, in the person of Isaac Larry Dyck, a retired RCMP officer. INAC did not inform the applicants that an investigation was being conducted or that an investigator had been appointed.

 

[8]               The investigator commenced but did not complete an investigation, and did not interview the applicants at any time. Rather, on the direction of INAC officials acting on behalf of the Minister, the work of the investigator was halted, as it was decided to rely on a concurrent investigation by the Gypsumville Detachment of the Royal Canadian Mounted Police (RCMP). Consequently, the investigator never produced an investigation report.

 

[9]               The RCMP was conducting an investigation in connection with the June 13, 2005 election, pursuant to section 125(a) of the Criminal Code, R.S.C. 1985, c. C-46. In the course of the investigation, the RCMP seized a large volume of mail-in ballot envelopes and signed voter declaration forms, and took numerous statements from electors. The RCMP did not advise the applicants of its investigation, nor attempt to interview the applicants during the course of the investigation.

 

[10]           The RCMP provided INAC with an investigation report, which the Minister treated as the only investigation report pursuant to section 13 of the Regulations. The RCMP investigation report was not shared in any form with the applicants.

 

[11]           It follows that the applicants were not given an opportunity to respond to the contents of the RCMP report, nor were they invited to provide additional information during the course of the RCMP investigation. Similarly, the applicants were not given the opportunity to review or respond to any briefings, memoranda or recommendations issued by the Minister under section 78 of the Act, or issued to the Governor in Council, under section 79 of the Act.

 

[12]           A new election was held on November 29, 2006, for the Lake St. Martin First Nation Band Council. Pursuant to an order by Madam Justice Johanne Gauthier, the ballots were to be counted by the electoral officer, without the votes being tallied, and immediately thereafter, the ballot boxes were to be sealed and remitted for safe keeping to the RCMP detachment of Gypsumville.

 

DECISION UNDER REVIEW

[13]           The Ministerial Declaration dated October 19, 2006, essentially states that, due to evidence of corrupt practice, the Minister has declared the elected position of Chief of the Lake St. Martin First Nation held by Peter Ross, and the elected positions of councillors held by Albert Ross and Earl Ross, to be vacant, in accordance with subparagraph 78(2)(b)(iii) of the Act. Furthermore, the Minister has declared the applicants ineligible to be candidates for chief or councillor of the Lake St. Martin First Nation for a period of six years, in accordance with subsection 78(3) of the Act.

 

[14]           Following a report by the Minister to the Governor in Council, as stipulated in section 14 of the Regulations, the Governor in Council set aside the election, held on June 13, 2005, of the remaining councillors of the Lake St. Martin First Nation, by way of an Order in Council, in accordance with paragraph 79(a) of the Act.

 

ISSUES FOR CONSIDERATION

[15]           The following issues are raised in this judicial review application:

1)      Did the Minister err by relying on the report provided by the RCMP, and not requiring a report by the investigator appointed under the Regulations?

2)      Did the Minister violate a duty of procedural fairness owed to the applicants?

3)      If procedural fairness requirements were not satisfied, can the Order in Council still stand or must it also be set aside?

 

STANDARD OF REVIEW

[16]           To determine the proper standard of review in this case, it is necessary to proceed by way of a pragmatic and functional analysis. The following observations can be made with respect to the factors outlined by the Supreme Court of Canada in Dr. Q  v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19.

 

[17]           As recently noted by Madam Justice Anne Mactavish in Hudson v. Canada (Minister of Indian Affairs and Northern Development), [2007] F.C.J. No. 266 (QL), 2007 FC 203, at paragraph 59, there is no privative clause in the Regulations. However, this does not imply a high standard of scrutiny if the other factors point to a low standard. Rather, silence on this point is neutral.

 

[18]           The decision-maker here is the Minister of Indian Affairs and Northern Development. It is to be presumed that as the Minister responsible for the Act and Regulations, he would have expertise in the application of the provisions relating to First Nations elections. This factor therefore favours greater deference. However, in general matters of statutory interpretation, the expertise of the Court would be greater than that of the Minister.

 

[19]           In looking at the purpose of the legislation, Justice Mactavish’s reasoning in Hudson, above, can also be applied in this case. She noted at paragraph 59:

With respect to the purpose of the provision in particular, and of the Indian Act and Indian Band Election Regulations as a whole, the purpose of the statute is clearly a polycentric one. The purpose of the Indian Band Election Regulations is to administer on-reserve elections in order to ensure that the aboriginal population benefits from orderly and effective electoral representation. In enacting the Regulations, Parliament has essentially established a regime setting out the procedure a First Nation should follow. This militates towards greater deference being accorded to decisions made under the Regulations.

 

 

[20]           The nature of the question in this case is one of law, as we are essentially concerned with whether the Minister was empowered, under the Regulations, to rely on the report of someone other than the designated investigator, which is essentially an exercise in statutory interpretation. As such, this would suggest a lower degree of deference.

 

[21]           Having considered the four factors, I have concluded that the proper standard of review is that of correctness.

 

[22]           With regard to the alleged breach of procedural fairness, there is no need to proceed with a pragmatic and functional analysis as the Court will automatically review any such alleged breach on a standard of correctness (Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221). If a breach of procedural fairness is found, the decision will be set aside (Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650).

 

ANALYSIS

1) Did the Minister err by relying on the report provided by the RCMP, and not requiring a report by the investigator appointed under the Regulations?

 

[23]           The applicants first challenge the Declaration on the ground that the findings of the Minister were based on an investigation and an investigation report from someone other than the duly appointed investigator, contrary to the Regulations. The applicants submit that subsection 13(2) of the Regulations would not allow for the Minister to appoint an investigator, but then rely on an investigation and an investigation report from someone other than the investigator. Simply put, it is only the Minister or an authorized agent of the Minister (such as a duly appointed investigator) who may exercise the duties required of him under section 13 of the Regulations.

 

[24]           Section 12 of the Regulations sets out the grounds for an election appeal, and the basic procedures to be followed when an appeal is lodged. If the material filed pursuant to section 12 is insufficient, then the Minister may proceed with an investigation, as outlined in section 13 of the Regulations, which reads as follows:

 

 

 

 

[25]           The respondents submit that, in this situation, the Minister, or more accurately the appropriate officials in his department, deemed that it was necessary to conduct an investigation, and that the manner deemed expedient was to rely on the information gathered by the RCMP, once it was discovered that they were conducting their own separate criminal investigation. The question is whether the Regulations empowered the Minister to proceed in this way.

 

[26]           The proper approach to statutory interpretation has been recognized by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at 41, as being best defined by Elmer Driedger in Construction of Statutes, 2^nd ed. (Toronto: Butterworths, 1983), where he wrote at page 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

 

[27]           The respondents maintain that, in the context of the legislative scheme, the purpose of section 13 is to empower the Minister to conduct a further investigation in order to ensure that he has sufficient evidence to assess the allegations in the election appeal. To this aim, he has been granted considerable discretion as to how to proceed. Furthermore, the Regulations do not set out any express rules of evidence for an investigation under this provision. The respondents also state that there is nothing in the Regulations that suggest the Minister is restricted to gathering evidence through an investigator designated under subsection 13(2). The legislative scheme, the text and purpose of section 13 of the Regulations, all suggest that this provision is broad enough to permit the Minister to gather evidence from a reliable source other than the designated investigator, in the context of an election appeal. Moreover, there is nothing in the Regulations or the Act prohibiting the Minister from basing the exercise of his powers under subparagraph 78(2)(b)(iii) and subsection 78(3) of the Act on evidence from the RCMP investigation report.

 

[28]           As noted above, subsection 13(2) of the Regulations requires the investigation to be performed by the Minister himself, or by a “person designated by the Minister for the purpose”. The respondents concede that the RCMP was not designated or empowered by the Minister to conduct the investigation – the RCMP was already conducting a criminal investigation under its own authority.

 

[29]           The Minister did however designate Mr. Dyck to conduct the investigation. Having been designated by the Minister in this capacity, subsection 13(3) of the Regulations required Mr. Dyck to “submit a detailed report of the investigation to the Minister for his consideration”. That being said, if Mr. Dyck was told to desist from his investigation before any information could be gathered, such a requirement would not make sense and could logically be ignored. Mr. Dyck did in fact report back to the officials at INAC that an RCMP investigation was ongoing, and it was on that basis that it was decided to halt his investigation and rely on the findings of the RCMP.

 

[30]           To sum up, the investigator designated for that purpose by the Minister did not conduct an investigation, but the RCMP, which was not designated by the Minister under the Regulations, conducted its own investigation, the results of which formed the basis of the Minister’s decision to issue a declaration under section 78 and refer the matter to the Governor in Council under section 79.

 

[31]           Having carefully considered the wording of section 13 of the Regulations, as well as the larger legislative scheme, I agree with the respondents that the purpose of the provision, as well as the clear language of subsection 13(1), do indeed suggest a wide discretion for the Minister in his choice of procedure. As also clearly stated in subsection 13(2), the Regulations do not require that an investigator be appointed to inquire into the allegations, as the Minister may conduct the investigation himself. The respondent is also correct in stating that there are no specific evidentiary requirements for an investigation under this provision, so that there is nothing preventing the Minister from relying on information gathered by an outside agency in making a determination that there was corrupt practice in the conduct of an election, and taking the appropriate steps under sections 78 and 79 of the Act.

 

[32]           The respondents also argue that pragmatism should prevail in interpreting the Regulations in this particular case. Given the independent decision of the RCMP to conduct its own criminal investigation of the same electoral transactions, there was no other practical way for the Minister to proceed. If Mr. Dyck had been directed to continue his investigation, he and the RCMP investigators would simply have been tripping over one another in their attempt to interview the same witnesses, review the same documents, and secure the same physical evidence (such as the mail-in ballots).

 

[33]           On this point, I find that I must disagree in part with the respondents. While I accept that an independent investigation would likely have encountered obstacles, particularly with respect to the gathering of evidence, there was an alternate course of action opened to the Minister, namely the approach that the Minister claimed to have followed in the Declaration. Mr. Dyck, as the designated investigator, could have conducted his investigation “by co-ordinating it with a concurrent investigation undertaken by the Gypsumville Detachment of the Royal Canadian Mounted Police”, and subsequently submitted his report which would have “included the results of the investigation by the Royal Canadian Mounted Police”, as was stated in the Declaration. That being said, while there were other practical alternatives open to the Minister, this does not invalidate the process chosen by him in this case.

 

[34]           However, given that the respondents admitted that Mr. Dyck did not co-ordinate his investigation with the RCMP, but in fact deferred to the RCMP investigation and report, and did not produce a report of his own, I wish to emphasize that I am quite dismayed that the Declaration contained such factual inaccuracies. However, since it is my finding that the Minister did not exceed his jurisdiction by proceeding the way he did, I do not believe that these inaccuracies in the Declaration, as troubling as they may be, would be sufficient to justify granting this judicial review.

 

[35]           Therefore, given all of the above, I find that the statutory scheme can be interpreted to permit the Minister to conduct the investigation without the assistance of an investigator designated under subsection 13(2) of the Regulations. In the process, the Minister could validly choose to rely on the evidence gathered by the RCMP in the course of their own investigation, as the most expedient way to make a determination under sections 78 and 79 of the Act.

 

[36]           As a final note on the scope of the Minister’s investigative power, I wish to address briefly the respondents’ subsidiary argument to the effect that, even if the Court were to have found that the proper process had not been followed, this would be immaterial because the applicants suffered no prejudice. As noted by the respondents there is no reason to believe that an RCMP investigation would be of lesser quality or conducted with less diligence than one by a designated investigator. While I agree with the respondents with regards to the qualification of the RCMP to carry out such an investigation, the applicants do claim to have suffered a prejudice from this approach, as they have been denied access to the RCMP report, on the ground that criminal matters were still outstanding. Given the significance of this argument, the failure of the Minister to disclose the findings of the investigation will be considered as a separate issue, under the heading of procedural fairness.

 

 

 

 

2) Did the Minister violate a duty of procedural fairness owed to the applicants?

 

 

[37]           The applicants submit that Band Council members should not be removed from a politically elected office, except in accordance with the principles of procedural fairness. The respondents do not dispute this statement, but disagree with the applicants on the precise scope of this duty of procedural fairness.

 

[38]           Generally, the fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness (Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at 653). Since the decision in question is administrative and clearly affects the “rights, privileges or interests” of the applicants, there is no question that the Minister owed the applicants a duty of procedural fairness.  However, as Madam Justice Claire L’Heureux-Dubé wrote in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at page 682, “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”.

 

[39]           The next step therefore is to turn to the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, and weigh the various factors identified by Madam Justice L’Heureux-Dubé, in order to determine the proper scope of the duty of procedural fairness owed to the applicants.

 

Nature of the Decision

[40]           The first important consideration is the nature of the decision being made and the process followed in making it. As noted by Madam Justice L’Heureux-Dubé at paragraph 23 of Baker, above:

The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.  

 

[41]           Here, the applicants submit that the decision at issue resembles a quasi-judicial process, in light of the specific procedures set out in sections 12 and 13 of the Regulations, and so should be afforded a significant degree of procedural fairness. The respondents for their part argue that, at its root, the decision does not involve a conflict between private rights, but is a polycentric decision concerned with maintaining the integrity of the election process. In other words, the Minister is not acting out of some private interest distinct from the applicants, but out of a statutory duty to protect the public interest. Therefore, a low degree of procedural fairness is warranted.

 

[42]           The answer on this point seems to me to be located somewhere in the middle. While the Minister is required to follow specific steps in processing the appeal, an appeal which will significantly impact the rights of specific individuals, it is also true that the Minister must weigh the applicants’ rights against the larger public interest, and that in doing so, the Minister is granted a significant degree of discretion.

 

 

 

Nature of the Statutory Scheme

[43]           The second factor is the nature of the statutory scheme and the role of the particular decision within the statutory scheme, including the extent to which the decision is determinative of the issue.

 

[44]           As noted by the applicants, the Minister’s decision is final and can only be reviewed through an application for judicial review. The respondents however point out that the impact of the declaration is finite, lasting only until the next election, or six years at the outside. While this may be true in theory, the reality may turn out to be quite different, as the impact on the reputation of those against whom such declarations are issued will likely be long-lasting. This factor would therefore warrant a greater degree of procedural fairness.

 

 

Importance of the Decision

[45]           The third factor identified by Madam Justice L’Heureux-Dubé is the importance of the decision to the individual or individuals affected; “[t]he more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated” (Baker, above, paragraph 25).

 

[46]           The applicants put great emphasis on this particular factor. They note that they have been removed from their politically elected office, have had their reputation significantly damaged, have lost their source of livelihood for a period of six years, and have been prevented from exercising their democratic right to be nominated to Band Council for a period of six years. The Supreme Court has in fact acknowledged in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at page 1113, that “[a] high standard of justice is required when the right to continue in one’s profession or employment is at stake”.

 

[47]           Both the applicants and the respondents acknowledge that there are also other interests at stake, although they frame the issue differently. The applicants insist on the rights of the other members of the Lake St. Martin First Nation to be represented by their duly elected representatives, while the respondents emphasize the more general ‘public interest’ in guarding against corrupt elections, an interest which the respondents perceive as justifying a more expeditious process with fewer procedural protections.

 

[48]           While I do recognize the larger public interest at stake, I cannot agree that it should be used as a justification for limiting procedural fairness. On the contrary, all of the interests identified appear to be quite important, and thus it would stand to reason that this would mandate a significant degree of procedural fairness.

 

Legitimate Expectations

[49]           The fourth factor to be considered is the legitimate expectations of the person challenging the decision; if the applicants had a legitimate expectation that a certain procedure would be followed, then this procedure would be required by the duty of fairness.

 

[50]           The applicants take a broad approach to this question, stating that they were legitimately entitled to expect that they would not be removed from their politically elected office, except for just and sufficient cause and upon being provided significant procedural fairness. The members of the Lake St. Martin First Nation were also entitled to expect that their democratic wishes would not be overthrown by the Minister, except in the clearest of cases where sufficient wrongdoing has been proven, and where the procedure was both fair and transparent. While this argument does have merit in terms of broad expectations to procedural fairness, I do not believe that this is sufficient to infer that the applicants had a legitimate expectation that a particular procedure would be followed.

 

[51]           The respondents maintain for their part that there were no precedents under the Regulations, and nothing communicated by the department, to suggest that more would be accorded in terms of a right of response. While this argument is significant to determine the scope of procedural fairness, it is not, however, entirely true, as the right to the disclosure of an investigation report produced under section 13 of the Regulations has been presumed by the Federal Court in past decisions (Morin v. Canada (Minister of Indian and Northern Affairs), [1998] F.C.J. No. 82 (QL), Gull Bay First Nation v. Canada (Attorney General), [2005] F.C.J. No. 1332 (QL) 2005 FC 1097), so that there are in fact some precedents.

 

Choice of Procedure

[52]           The final factor to consider is the choice of procedure made by the agency itself, “particularly when the statute leaves to the decision-maker the ability to choose its own procedures” (Baker, above, paragraph 27).

 

[53]           On this point, there is no question that much discretion was granted to the Minister in the choice of investigative procedure under section 13 of the Regulations, as opposed to the clearer requirements found at section 12 for the initial phase of the election appeal. The respondents maintain that Parliament could have provided for the disclosure of the report had it wished to, but it did not, most likely because of the need for a relatively expeditious process. This final factor thus points towards a lesser degree of procedural fairness.

 

[54]           Finally, in weighing these factors, we must not lose sight of the fundamental requirements of procedural fairness. As noted by Madam Justice L’Heureux-Dubé at paragraph 22 of Baker, above:

[…] underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

 

[55]           On a review of the Baker factors, the applicants submit that the Minister owed the applicants a significant degree of procedural fairness, which duty included, but was not limited to:

a)      advising the applicants of the investigation;

b)      providing the applicants with an opportunity to respond to the allegations made against them during the course of the investigation;

c)      providing the applicants with a copy of the investigation report, or at minimum, the findings or conclusions of that report; and

d)      providing the applicants with an opportunity to respond to the contents of the investigation report, or to any other material provided to or considered by the Minister, prior to issuing the Declaration.

 

[56]           The respondents for their part maintain that procedural fairness was adequate and that the applicants were provided with a sufficient right of response under the circumstances. The respondents argue that the applicants have already issued categorical denials and attempted to discredit the particular deponents of the appeal, and that they have failed to demonstrate how anything more could have come out of any further right of response.

 

[57]           Having weighed all of the above factors, I find that the applicants were entitled to an important level of procedural fairness, particularly in light of the finality of the Minister’s decision and the importance of the decision. However, I agree with the respondents that this is not a situation which calls for a quasi-judicial degree of procedural fairness.

 

[58]           In terms of the specific requirements of procedural fairness, I would agree with the respondents that it was not required for the Minister to give notice that an investigation was being launched, or to interview the applicants as part of that investigation. I recognize that there may have been valid reasons why the Minister would have chosen to keep the investigation confidential until its completion.

 

[59]           However, I believe that the duty of procedural fairness owed to the applicants by the Minister included the duty to disclose the fruits of the investigation, and to provide the applicants with an opportunity to make written submissions in response, which would be considered by the Minister in his final determination. Since the applicants were entitled to respond to the initial evidence presented to the Minister during the first phase of the proceedings, fairness dictates that they should have been granted the same right following the second phase of the proceedings, namely the investigation. The applicants’ submissions in the form of affidavits were made on the basis of the information that was before the decision-maker at that point in time, and thus may have been limited in scope, particularly if the applicants did not believe that the appeal disclosed any serious allegations, based on the evidence submitted.

 

[60]           The respondents maintain that the procedures under section 12 of the Regulations are sufficient to meet the requirements of procedural fairness. I would argue however that this protection afforded by section 12 would be quite illusory if section 13 were then to allow the Minister to launch an investigation, yielding a detailed report based on much more than the material disclosed to the accused, and then based on this new evidence, remove them from their position without giving them the chance to respond.

 

[61]           If the Minister had made his decision after receiving the response from the applicants to the initial evidence presented to the Minister on the appeal, I would be reluctant to intervene, given the large discretion granted to the Minister under the Act and the Regulations. However, once the Minister decided to launch an investigation pursuant to section 13 of the Regulations, it became, to use the popular expression, a whole new ball game.

 

[62]           The respondents further rely on the decision of the Federal Court of Appeal in Hutchinson v. Canada (Minister of the Environment), [2003] F.C.J. No. 439 (QL) 2003 FCA 133, to the effect that a right of response to everything gathered by an investigator could lead to an endless loop of rights of response by each side in succession. On this point, I understand the concerns of the respondents, particularly in light of the short timeframe within which the Minister must operate, as any given election is only valid for a period of two years. I also understand that, in this particular case, there may very well have been elements of the RCMP reports that could not have been disclosed to the applicants in light of the potential for criminal charges to be laid, as well as the real possibility that witnesses could be subject to threats or intimidation.

 

[63]           However, I believe that a disclosure of an edited version of the report, accompanied by a limited right of reply through written material submitted within a reasonable timeframe, would have been manageable and would have gone a long way towards ensuring the fairness of the process for the applicants.

 

[64]           Finally, as was alluded to earlier, there is some jurisprudence from the Federal Court to the effect that an investigation report issued pursuant to the Regulations should be disclosed to individuals who are the subject of an election appeal, who should then be provided with an opportunity to respond. In Morin, above, Mr. Justice Paul Rouleau granted a stay of the judicial review application following an agreement to that effect between the parties. In the reasons accompanying the order, Mr. Justice Rouleau made the following statement with respect to procedural fairness, at paragraph 3:

I am not satisfied that these Applicants were provided with an opportunity to challenge the report submitted to the Minister; nor were the negative reasons of the investigator ever communicated to the Applicants in order to provide them with an opportunity to properly assess whether or not there were sufficient legal grounds to challenge the Order in Council which set aside the election of Chief Ronald Vincent Morin.

 

 

[65]           In Gull Bay First Nation, above, Justice J. François Lemieux, in granting an interlocutory injunction in the context of a judicial review application of an Order in Council under section 79 of the Act, referred to the above decision, stating at paragraph 25 that:

This Court has already held in Morin v. Canada (Minister of Indian and Northern Affairs), [1998] F.C.J. No. 82 that the non-disclosure of an investigator's report leading to the setting aside of a Band election violates the principles of fairness.

 

 

[66]           In conclusion, I find that the applicants’ right to procedural fairness was violated by the Minister’s failure to disclose the results of the investigation and to provide the applicants with an opportunity to respond.

 

3) If procedural fairness requirements were not satisfied, can the Order in Council still stand or must it also be set aside?

 

[67]           The applicants maintain that since the Order in Council was issued entirely as a consequence of the Minister’s report, which was informed by a process that did not meet the requirements of procedural fairness, it too should be set aside.

 

[68]           The respondents for their part argue that a decision of the Governor in Council is entitled to great deference, unless the Governor in Council was acting outside of its jurisdiction (Canada (A.G.) v. Inuit Tapirisat, [1980] 2 S.C.R. 735). Since the Governor in Council relied, as it must, on a report from the Minister, it did not act outside its jurisdiction. The respondents also maintain that the requirements of procedural fairness are very limited for decisions of the Governor in Council and thus, as stated by Mr. Justice Barry L. Strayer in McIvor v. Canada (Attorney General), [2006] F.C.J. No. 1484 (QL), 2006 FC 1187, at paragraph 6, “[t]o attack the decisions of the Governor in Council on procedural grounds could be very difficult”. The difficulty arises primarily from the fact that recommendations of a minister to the Governor in Council are generally subject to Cabinet confidence.

 

[69]           In the case before us, the decision of the Governor in Council was made under paragraph 79(a) of the Act, which states that:

 

[70]           There is no provision in the Regulations, similar to those that are found under section 13, that speak to any investigation that might be conducted by the Governor in Council in order to conclude that it would be warranted to set aside the election. Rather, there is a provision at section 14 of the Regulations that once the Minister has made the determination that there was corrupt practice in connection with the election, then he “shall report to the Governor in Council accordingly”.

 

[71]           The only reason that the Governor in Council even considered setting aside the election was due to the report from the Minister once he determined that there was corrupt practice in connection with the election. As we have already established, the Minister violated the applicants’ right to procedural fairness in making that determination, by denying them access to the investigation report and, consequently, denying them an opportunity to respond to the report. If this denial of procedural fairness in the course of the investigation leading to the determination by the Minister of corrupt practices vitiated his Declaration under subparagraph 78(2)(b)(iii) and subsection 78(3) of the Act, then it would stand to reason that it would also vitiate his report to the Governor in Council pursuant to section 79 of the Act, as the Minister’s determination of corrupt practices that led to that report was based on the results of the same investigation.

 

[72]           Since the violation of procedural fairness occurred at the level of the investigation directed by the Minister, the respondents’ arguments on the deference owed to the merit of a decision by the Governor in Council or the procedure followed by the Governor in Council itself subsequent to the report by the Minister, are both irrelevant. In other words, if the reviewable error, in this case the failure to meet the requirements of procedural fairness, occurred at the stage of the ministerial determination on the occurrence of corrupt electoral practices, anything that flows directly from that would be tainted by that error. In the present case, this would include both the Ministerial Declaration and the Order in Council.

 

[73]           It could also be said that what is essentially being challenged is the report of the Minister to the Governor in Council, as opposed to the decision of the Governor in Council itself. The initial position on this question was found in the decision of the Federal Court of Appeal in Bear v. Canada (Minister of Indian and Northern Affairs) (F.C.A), [1988] F.C.J. No. 1043 (QL), where Justice Darrel V. Heald stated that the Minister’s report to the Governor in Council under section 79 “does not have any legally binding operative effect of its own but operates only as a condition precedent to the powers vested in the Governor in Council pursuant to Section 79”. Therefore, a report by the Minister under section 79 of the Act would not be considered to be “a decision or an order”, as per subsection 18.1(1) of the Federal Courts Act, and thus could not be subject to judicial review.  However, in Moumdjian v. Canada (Security Intelligence Review Committee), [1999] F.C.J. No. 1160 (QL), the Federal Court of Appeal later revisited this question in a case dealing with a report submitted to the Governor in Council by the Security Intelligence Review Committee. After an extensive review of the jurisprudence, in particular as relates to the judicial review of interlocutory decisions, Justice Joseph Robertson noted at paragraph 22:

… On the other hand, a decision which takes the form of a recommendation or advice to a Minister or the Governor in Council, and is intended to be acted on, must be subject to judicial review, if only because the consequences which flow from a flawed decision or flawed process are invariably of fundamental significance to those who are adversely affected by it.  Today, no one would accept, for example, that if a person were denied procedural fairness before a tribunal responsible for making an advisory decision that the decision should be allowed to stand. 

 

[74]           Therefore, I am satisfied that the violation of procedural fairness in the conduct of the investigation by the Minister, namely the failure to disclose the findings of the RCMP investigation and to provide the applicants with an opportunity to respond, justifies setting aside both the Ministerial Declaration and the Order in Council.

 

[75]           That being said, I do have some concerns with regards to the timing of my decision, particularly in light of the short timeframe within which the Minister must operate. It is important to keep in mind therefore that, while the denial of procedural fairness in this case requires that both the Ministerial Declaration and the Order in Council be set aside, the investigation by the RCMP stands on its own, and the report stemming from that investigation remains valid. Therefore, the Minister is not back to square one, but may rely on the RCMP report as part of the investigation under section 13 of the Regulations, as long as there is some disclosure of the findings and conclusions of the report, coupled with an opportunity for the applicants to provide a reply. As I suggested at paragraph 62 of these reasons, given the fact that this report was prepared in the context of a criminal investigation where it may be necessary to withhold some information in order to protect witnesses and safeguard evidence, the Minister may release a redacted version of the report to the applicants and still meet the requirements of procedural fairness.

 

[76]           Finally, given the limited scope of my powers under the judicial review process, I have no authority regarding the measures to be taken following my decision, including as relates to the interim injunction granted by Madam Justice Gauthier on November 22, 2006.

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

1.                  The application is allowed;

2.                  The Ministerial Declaration and the Order in Council are set aside;

3.                  The whole matter is returned to the Minister, so that he may take whatever actions are necessary, in light of these reasons;

4.                  Costs in favour of the applicants.

 

 

 

“Pierre Blais”

ANNEX

PERTINENT LEGISLATION

Indian Act, R.S.C. 1985, c I-5

 

Indian Band Elections Regulations, C.R.C., c. 952

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

DOCKET:                                          T-2049-06

 

STYLE OF CAUSE:                         

PETER ROSS, EARL ROSS and ALBERT ROSS

Applicants

and

 

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

(INDIAN AND NORTHERN AFFAIRS),

THE ATTORNEY GENERAL FOR CANADA

Respondents

 

PLACE OF HEARING:                    Winnipeg, Manitoba

 

DATE OF HEARING:                      March 13, 2007

 

REASONS FOR JUDGMENT:       BLAIS J.

 

DATED:                                             May 11, 2007

 

APPEARANCES:

 

Mr. Ryan Savage	FOR THE APPLICANTS
Mr. Paul R. Anderson Mr. Michael Conner	FOR THE RESPONDENTS

 

SOLICITORS OF RECORD:

 

Taylor McCaffrey LLP Winnipeg, Manitoba	FOR THE APPLICANTS
John H. Sims, Q.C. Winnipeg, Manitoba	FOR THE RESPONDENTS